2/24/2005

Eminent domain argued: San Bernardino (CA) Sun, 2/23/05

The Supreme Court struggled Tuesday to balance the rights of property owners against the goals of city officials who want to sweep away old neighborhoods and turn the land over to private developers.

And the outcome could hold ramifications for several San Bernardino County cities and their residents.

Citizens who are suing the town of New London, Conn., say their working-class neighborhood is slated for destruction primarily to build an office complex that will benefit a pharmaceutical company that built its research and development headquarters nearby.

An attorney representing the city, Wesley Horton, told the court the revitalization project will create new jobs and trigger much-needed economic growth. He said increased tax revenue is enough of a legal basis for the city to exercise the power of eminent domain and compel the residents to sell their homes.

If a city wanted to seize property to turn a "Motel 6 into a Ritz-Carlton, that would be OK?' Justice Sandra Day O'Connor asked.

"Yes, your honor, it would be,' Horton replied.

The justices expressed sympathy for the longtime residents. At the same time, they questioned whether they have the authority to stop the town's plans.

The outcome could have significant implications.

In San Bernardino County, cities have wrestled with use of eminent domain.

Rialto might use it to clean up a neighborhood an "eyesore,' in the words of one councilman. Dilapidated apartment buildings would be replaced by new ones, built by a nonprofit agency.

Loma Linda has had pitched battles with residents, particularly in the older northern and central neighborhoods.

Loma Linda officials say they're eliminating blight and want to build low-income housing that will be more aesthetically pleasing. Residents say city officials want more expensive homes and the property tax they bring, or retail shops.

Eminent domain has also raised questions in Redlands, where 200 residents packed a December meeting on the subject.

In Muscoy, land might be taken for a middle school. In Highland, it's highway on-off ramps.

San Bernardino officials are contemplating moving residents from 264 apartments, 173 houses and several businesses and churches for the city's Lakes and Streams Project.

Also in San Bernardino, a reversal of the trend: The school district might take a shopping center through eminent domain to build a new school.

In this case, officials with the San Bernardino City Unified School District consider the move to be for the public good because it would relieve crowding at Lincoln Elementary School, where 1,200 students are crammed into a school built for 600.

In recent years, the city of San Bernardino evicted homeowners and a motel owner to build a new shopping center in its Hub area, between Tippecanoe and Laurelwood.

Across the nation Tuesday, rallies supported the rights of homeowners against the threat of eminent domain.

The Institute for Justice, a nonprofit Libertarian law firm, is representing residents in the case being considered by the U.S. Supreme Court.

"If the Supreme Court decides that the mere possibility of increased tax revenue is a public use under the Constitution, literally no one's home is safe because anyone's small business can make more money as a big box store and anyone's home can make more money as a luxury condominium,' said Steven Anderson, coordinator of the Castle Coalition, the Institute for Justice's nationwide grass-roots project.

In recent years, there have been over 10,000 instances of private property being threatened with condemnation or actually condemned by government for private use, according to the Institute for Justice. The group represents the New London residents who filed the case.

Scott Bullock, representing the neighborhood residents, argued that government cannot take private property from one owner and provide it to another just because the new commercial project will boost finances. The city plans to give the developers a 99-year lease for a dollar a year.

"More than tax revenue was at stake,' Justice Ruth Bader Ginsburg replied. "The town had gone down and down' economically.

O'Connor questioned whether the homeowners were asking the court to "second-guess' the governmental power of eminent domain.

The legal arguments concern the Fifth Amendment prohibition against taking private property for public use without just compensation.

The city says it is willing to pay a fair price.

"You are paying for it, but you are taking it from somebody who doesn't want to sell,' Justice Antonin Scalia told Horton, the lawyer representing New London.

Several justices focused on the residents' argument that the court should impose standards for governments to meet when they want to sweep away neighborhoods for economic revitalization.

"A lot of times governments have no clue what they're going to do with the property,' Dana Berliner, co-counsel for the neighborhood residents, said after the court arguments ended.

New London, a town of less than 26,000, once was a center of the whaling industry and later became a manufacturing hub. The revitalization project is a few miles downriver from the U.S. Navy's submarine base in Groton.

The starting point for Tuesday's arguments was a Supreme Court ruling five decades ago that allowed governments to take private property for urban renewal.

The neighborhood's lawyer, Bullock, seized on that case, contending there is a difference between the urban blight of 1954 and the current circumstance of an economically depressed town.

Ginsburg also wondered whether the urban renewal case offers much hope for the neighborhood. She pointed out that the issue in that case involved a department store that was not contributing at all to the blight in the area. The court nonetheless cleared the way for local government to take the department store's property for the renewal project.

Chief Justice William Rehnquist, who is battling thyroid cancer, did not attend the arguments and will be absent for the next two weeks. He has not attended arguments since October. Justice John Paul Stevens was out of town and missed the day's arguments.

The case is Susette Kelo v. City of New London and New London Development Corp., 04-108.

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